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chapter 14: The Reconciliation of the English Systems of Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Reconciliation of the English Systems of Law
The expulsion of James II has always been known as the Glorious Revolution of 1688. Its most glorious feature was the establishment of the constitutional rule in England that judges hold their offices during good behavior. To this rule we owe the clause in our Federal Constitution that the justices of the Federal Supreme Court and the circuit and district judges of the United States are protected by the provision that they hold office during good behavior. The original rule in England had been that the judges held at the pleasure of the king, but as a matter of practice they had held by a life tenure, except during the time of the Tudor and Stuart kings. Whatever had been the political changes, the judges preceding that time had not been attacked, at least for political reasons. Edward I’s judges, it is true, had been tried and convicted for venality and judicial misconduct. There were, during the reigns of the three Edwards, instances of particular judges being removed. Under Richard II the king’s judges were removed and punished by Parliament because Tresilian, the Chief Justice, had caused all the judges except one not punished, to sign an extra-judicial opinion that Parliament had been guilty of high treason. Tresilian, the Chief Justice of the King’s Bench, was beheaded, the rest of the judges who signed the paper, and Lokton, the King’s Serjeant, were banished to Ireland as a sort of political Botany Bay. All of the judges would have been beheaded in accordance with the cruelty of the times, had it not been for a moving petition from the clergy to the Parliament.
When the Lancastrian Henry IV displaced Richard II there was no change in the judges. In the Wars of the Roses the Yorkists triumphed, but the only judge affected was Chief Justice Fortescue, who had been in the Lancastrian army. When Henry VII defeated the last Yorkist king, Richard III, on the field of Bosworth, there was no change whatever in the judges. When Queen Mary, Henry VIII’s daughter, succeeded as a Roman Catholic queen her brother, Edward VI, the judges merely changed their religious allegiance back to the Pope. Elizabeth came in after a few years and the judges very accommodatingly became Protestants again. Under James I, Elizabeth’s successor, began the practice of the Crown selling the judgeships for actual cash payments. Cromwell, as Lord Protector, made a clean sweep of the judges in office. Charles II at the Restoration appointed new judges, but kept Sir Matthew Hale. James II twice dismissed his judges. At the Revolution, Jeffreys died before he could be beheaded, but the subservient creatures of James, except one independent judge, were supplanted.
The rule was then established as to the judges that they were not removable, and this rule we inherited in the American colonies, although in many States we have now returned to the worst feature of the Roman system, elective judges. Of all those parts of the world entitled to be called civilized, the States of our Union, except where life tenure has been preserved, are the only places where judges are elected. Generally speaking, the benches of the States would be far better manned if the judges were appointed for life. There are many men who advocate election of judges; but we venture to say that there is not an elective judge who is fit to sit upon the bench, who would not gladly change his tenure to that of the Federal judges. At any rate the advocates of elective judges know little, if anything, of legal history.
The reason for making the judge a permanent officer is that the judge, of all men, is the man who should make no sacrifice for justice. He must pay no price to do justice. Whoever he is, whatever his attainments, he must be left free to be impartial, without any chance of being called to account elsewhere for his conduct as a judge, unless his conduct be criminal. The very essence of the administration of the law is uninfluenced impartiality, and the history of the law has proven that men who are put into judicial position, if let alone, generally try to act with an eye single to judicial impartiality. There are many instances of the sacrifice of elective judges to popular clamor. Those who desire to see the judges made subject to influence of any kind, except that of the desire to administer justice in accordance with law, whoever they may be and whatever their motives, and whatever the influence sought to be exerted, whether that influence be of men with good intentions or bad, or of the general pressure of popular opinion, are enemies of good government and without any true sense of civic morality. Therefore it is that the most glorious result of the deposition of the worthless James was the permanent tenure of the English judge. At the same time, England had learned the lesson of the duty of government to compensate its judges with salaries that do not require too great a sacrifice by able men, when the salary is compared with the emoluments of practice.
This judicial reform was a great buttress to the structure of English law. There remained many other reforms not so great. One was the general liberalizing of the common law and its practitioners. Another was the establishing of rules of evidence whereby the jury might become a true judicial body. Another was the reform of methods of pleading so that the actual controversy might be put to the judicial body. But they were of smaller importance than the one that was to be awaited for two hundred years in England, a reform which has been made all over this country, by which the one court of general jurisdiction is given such complete power that it may use whatsoever principle of law may be applicable to the circumstances of the case before the court, and especially the power to be a court either of common law or of chancery, as the case may require.
Here it will be well to survey the law and look back over the long road that had been traveled since the year 1268, when Bracton’s eyes were closed in death. By the process of confining itself to the kind of cases whose facts a jury could decide, the common law had narrowed its field, but it had made the jury a judicial body. If narrowness had been of evil effect from some standpoints (those evils have already clearly been pointed out), it had at least left the chancery courts free to develop a parallel system of law, which had been systematized and had been given an interrelation and an interdependence that were calculated to produce judges and a bar that would recall the juristic methods of the Roman jurisconsults.
As to the jury system, it remains to consider its good effects. It brought the average citizen into contact with the law. It made him a constituent part of legal administration. It gave the citizen the sort of training that is needed in a people who are to live under free institutions. It no doubt was due to this jury system that the English began to show political capacity in the people at a time when the rest of Europe was incapable of the least effort toward self-government. The jury system possessed the representative feature, which was applied in the formation of the English Parliament and it will easily be conceded that representative government is, as Montesquieu says, the only actual political invention since Aristotle wrote his Politics. From this standpoint it is to be said that the more intelligent portion of the population received through the jury system a training in the appreciation of, and respect for, law and orderly government which atoned for all its evils.
Nothing has yet been said about the legal profession in any connected way. It is time now to say something of the profession, for when this story comes to the legal profession in this land of ours, it will be necessary to contrast the profession as developed in England with the profession as the peculiar circumstances in this country have transformed it. From an early period of the common law—at least as early as the year 1250—owing to certain historical influences, the legal profession became finally divided into two sharply defined classes: one class consisted of barristers or advocates, who are concerned especially with the work of presenting a cause to the court; and the other class comprised attorneys, who have charge of the work of preparing the case and performing all the greater part of the lawyer’s work which does not consist of pleading a cause or of conducting an actual trial, or of performing the consultative work of the barrister. The key to the distinction is that even among our barbarous ancestors one could always have a friend or associate to speak for him in court; but the right to have an attorney who acts for and binds his principal is of much later growth. Originally the barrister’s words did not bind the client. In the later days of the Roman empire the advocates had become separated into a distinct class. In England and in France this division of the profession endured. The fact is that the barrister or advocate has always enjoyed a peculiar prestige over the attorney: not only has he enjoyed a higher social standing, but the ranks of the advocates generally have been filled by men enjoying better opportunities in life and coming from a superior social station. In fact, an attorney is defined, in one of the old rules of the Inns of Court, to be “an immaterial person of an inferior character,” and for centuries all attorneys have been rigidly excluded from the Inns.
All the literature of the early common law is concerned wholly with the advocate in court. This literature is a priceless heritage in the law, though few now can read it. Arguments of advocates in court are reported from a period as early as 1292. England from that distant time enjoyed a system of law so well developed that the very arguments of the lawyers and the grounds of the decisions of the judges are accurately reported. Careful listeners skilled in the law preserved upon parchment the arguments and in many cases the very words of the English barristers as they pleaded their clients’ cases purely on law points in the courts. These collections are known as the Year Books, and reach from the year 1292 until about 1500, with some later fragmentary Year Books. They are all written in Norman French, or, as that artificial tongue became, Anglo-Norman. As the Year Books are closing, the reports such as Dyer, Anderson, and Plowden, which bear more resemblance to our present reports, begin; but the unique value of the Year Books is that they report, with practical accuracy, the debates of the lawyers while the court was ascertaining and getting at the controversy which was to be tried. Here the work of the barrister ended in the early times. The Year Books end when the modern practice of written pleadings begins.
Thus it is plain that of the two parts of the tribunal with which the modern advocate deals, the judges and the jury, the barristers in the early common law dealt only with the judge. Another obvious matter should be noticed, and that is that there was no criminal work for the advocate unless he spoke for the prosecution. In all cases where the Crown prosecuted, the defendant could have no counsel until comparatively late times.
The advocates in 1292 are divided into classes, the serjeants at law and the apprentices (or the seniors and the juniors). Long afterwards were to come the distinctions between serjeants, King’s counsel, and utter barristers. At the time we are now considering, an apprentice (or, as we say, a barrister) after years of practice is called to the degree of serjeant. From the serjeants alone are the judges chosen. It is the serjeant whom the judge addresses as brother, not the apprentice. During all these centuries the advocates of the common law practised and argued before judges who had served long years in active practice and, unless they were afflicted with an incurable congenital stupidity, were likely to have become good lawyers.
The advocate at this time is required to be a man of learning. He must know three languages and be able to speak fluently in them all. The oral proceedings in court are all in Norman French. The record of the case is wholly in Latin, but when the barrister talks with his clients he must sometimes know one or more of the barbarous dialects spoken by the middle and lower classes of the English. So far as the Year Books show us, the advocates make no attempt at oratory. Their words are direct, their arguments are very short, and their diction is wholly unadorned. The whole procedure is a sort of informal discussion. As the argument and discussion proceed, new facts are suggested, a new bearing is given to matters already stated, the serjeants and apprentices present who are not engaged in the case intervene with their opinion and advice in a case of any importance, and sometimes the judge sums up the discussion for the benefit of those who are present. The students of the law from the Inns are present listening to the discussion. In one place Bereford, the Chief Justice, says to Serjeant Westcote, who has challenged a point of law laid down by the Chief Justice: “Really I am much obliged to you for your challenge, and that for the sake of the young men here and not for us who sit on the bench. All the same, answer over.”
Now and then the bar had the pleasure of hearing one judge impale another. Bereford, this same Chief Justice, tells how he was present in Parliament when the Countess of Albemarle, who seems to have had quite fixed opinions of her own, was brought in on a writ from the King’s Bench court. It was objected to the writ that it did not specify the charges against her. Two of the judges said that the writ was good, but Hengham the Chief Justice, arguing it to be bad, said to one of them: “Yes, you would make such a judgment here as you did at C. where the accessory was hanged, and the principal was afterwards acquitted before you yourself.” To the other judge he said: “Before you a man was hanged and afterwards that man’s heritage was granted to his heir to repair the injustice, because your judgment was against the law of the land.” In Edward III’s time Willoughby, J., was laying down the law from the bench. His brother Shareshulle, sitting with him upon the bench said: “That is not law now.” Willoughby contemptuously retorted: “One more learned than you are adjudged it.”
The advocate sometimes gets a drubbing. A judge says to two learned serjeants arguing against an accounting: “Leave off your noise and deliver yourselves from this account.” In another case Howard, J., says to learned counsel: “If you want to cite a case, why don’t you cite one in point?” Stonor, C.J., observes as to an apprentice Green who has been lecturing the court: “I am amazed that Green makes himself out to know everything in the world—and he is only a young man.”
If we come forward a hundred years to the year 1398, Richard II, the great-great-grandson of Edward I, is on the throne, and we see the same system precisely, the same kind of reports, the same sort of lawyers; but the lawyers have deteriorated. In reading the reports one gets the impression that the lawyers are not open-minded, they seem to have little flexibility of thought, they do not seem to understand or to know how to handle with skill the system of law they administer.
Singularly enough, we have at this very time a serjeant drawn to the life by our first great poet who no doubt knew personally these very lawyers. In the Prologue of the Canterbury Tales, Chaucer has given us a picture of the typical advocate of his time. It will be better to paraphrase and prosaically to amplify Chaucer’s obsolete and impracticable English. One can see an authentic picture of the sober, wise-looking, pompous, successful lawyer of his day, whose tribe has by no means passed away after the lapse of more than five hundred years. In that curious collection of people assembled in the Prologue, at the Tabard Inn in Southwark, to wend their way to the shrine of St. Thomas at Canterbury was a serjeant of the law. Wary and wise was he, says Chaucer, and he had served many years at his pillar in the space before St. Paul’s. In that glorious time the advocate paid no rent; his office was in the Parvis of St. Paul’s, the public space at the columns of the porch of the cathedral, where a pillar or column was assigned to each serjeant. Here he met his clients and took notes upon his parchment roll upon his knee. This serjeant of Chaucer’s was a great purchaser of land, “so great a purchaser was nowhere known.” But the man seemed busier than he was. He carried with him his parchment book of cases and decisions or dooms gathered from the time of King William the Conqueror, and every statute he could repeat by rote. Chaucer adds to the picture the serjeant’s sober medley coat, with a silken sash at the waist. Every one of us can recall at the present day some solemn, pedantic man, looking preternaturally wise and pretending to be busier than he is. Their race has never grown less.
Yet this system produced some very great lawyers and very great men. Such men as Parning, Fortescue, Littleton, and Danby would be great in any age. But we shall not stop to give any particulars regarding them or further to illustrate their styles of argument out of the Year Books, for the procedure as they knew it, has passed away, although the substantive law remains much the same. We will now come forward another hundred years to 1485 and find the barristers after the fierce struggles of Lancastrians and Yorkists in the Wars of the Roses have ended, and Henry VII, the first of the Tudors, is on the throne. The little princes had been killed in the Tower by their uncle, the hunchback Richard III, and Henry VII, who had the title of the red rose of Lancaster, had married the eldest sister of the murdered princes, the White Rose of York, and had gained an undisputed title to the kingship. We have, for about this period, a full description of the English legal system and a detailed account of an advocate’s education at the Inns of Court in Chief Justice Fortescue’s Latin treatise De Laudibus Legum Angliae, or Praise of England’s Law, one of the priceless treasures of our legal literature.
The origin of the Inns of Court is lost in antiquity; but it is practically certain that there was a body of law students older than any of the Inns. One set of students in Edward II’s reign, or soon thereafter, obtained quarters in the Temple, the confiscated property of the Order of Knights of the Temple, and soon divided into the Middle and the Inner Temple. Another body of students gathered at Lincoln’s Inn. Still later another set of students later obtained the mansion of the Lords Grey de Wilton, and became Gray’s Inn. Connected with the larger Inns were ten smaller Inns of Chancery, having no connection with the court of chancery, but so called because they were the preparatory schools where the students studied the original writs in lawsuits, which were issued out of the chancery.
But there was, of course, some reason why, on the edge of the old city, just beyond the city wall at what came to be called Temple Bar, all these students should have found lodging places. Fortescue explains that the laws of England cannot be taught at the university, but that they are studied in a much more commodious place, near the king’s courts at Westminster, where the laws are daily pleaded and argued and where judgments are rendered by grave judges, of full years, skilled and expert in the laws. The place of study is near an opulent city, but in a spot quiet and retired, where the throng of passers-by does not disturb the students, yet where they can daily attend the courts. The street now called the Strand was then a rural lane. The students walked along it to reach Westminster Hall, where all the courts sat. Even the chancellor sat in the marble chair at the head of this old Norman hall of William Rufus, the Conqueror’s son.
These four larger Inns were wholly voluntary institutions. The older and better known barristers of an Inn became the governing body of benchers, and they were self-perpetuating. They alone had and still retain the exclusive privilege of calling to the bar, but upon their refusal to call an appeal lay to the judges. In these four Inns the students studied the cases in the Year Books, the legal treatises called Fleta and Britton, read the statutes, and attended at court in term time. Soon they would be reading Littleton’s Tenures and later Coke’s crabbed commentary on Littleton.
Instruction was given by arguing moot cases before a bencher and two barristers sitting as judges, and by lectures called readings delivered by some able barrister belonging to the Inn. It was a high honor to be selected as reader, and the expense of the feasts given by the readers at the Inns became very great. After a student had studied seven years (afterwards reduced to five), he was eligible to be called to the bar. The barristers before becoming serjeants were probably called apprentices, although that term was sometimes applied to the students. Whether an examination was required is problematical, but possibly that part of the ceremony of instituting a serjeant, which required the serjeant to plead to a declaration, points to an examination of some perfunctory sort.
Fortescue explains the high cost and expense in keeping a student at the Inns, and artlessly adds that the poorer class and the tradespeople are not willing to pay for such an education, “whence it happens that there is hardly a skilled lawyer who is not a gentleman by birth.” Fortescue was himself descended from the Norman who bore the Conqueror’s shield at Hastings and his own descendants still enjoy an earldom.
By this time a new set of lawyers was developed in the chancery courts. The chancery bar proper was called barristers, but the mechanical portion of the chancery lawyers was called solicitors. For this bar a study of the common and civil law was necessary. The solicitors were almost invariably graduates of Oxford or Cambridge, and generally were men of more liberalized understanding than the common lawyers; but gradually the chancery bar and the common law bar coalesced to the extent that they indifferently became students at the Inns after they had received a liberal training at the Universities. As a necessary result of their practice and training, the chancery lawyers came to be a superior type of men. The common lawyer in his narrow, slavish way asked merely whether there was a writ to suit the case. If there was no writ and no precedent, no right existed. But the chancery lawyer looked to reason and justice, good faith and fair dealing, and acted accordingly. But since there was more or less of exchange between the two bars, the influence of the chancery tended to broaden the common lawyer.
We shall now move forward another hundred years to 1588, in the reign of Elizabeth. Evidence is now submitted to the jury in open court. The actions are in the four in contract, the four in tort, and two kinds of ejectment, one of which became the later action of trespass in ejectment. Some of the old actions were retained, but rarely used. The Year Books have ceased and the reports of Keilway, Dyer, Benloe, Dalison, Anderson, Plowden, Moore, and others have begun, to be followed by an unending line. We are now in the period of written pleadings, and the demurrer on point of law has been invented. No longer do we see the free and flexible system of discussing all the proposed facts before the pleadings are settled and written in Latin on the record roll. Now the advocates argue their cases in English even when they are addressing the court. The English language has reached a richness and flexibility that it will retain to our own time. But the reports still are in Norman French—a French, however, that has lost its grammatical form and freely substitutes Latin or English words. The record still is written in Latin, but it too has taken on English words. Fresh force masquerades as the Latin frisca forcia.
The ideas of the lawyers of the period can be illustrated by translating from Moore’s Anglo-Norman Reports at the Easter term of 24 Elizabeth (1580) a passage from an actual speech of Lord Chancellor Bromley. Dyer, the Chief Justice of the Common Pleas, is just dead. The Queen has appointed Anderson, one of the serjeants, to the vacancy, and the Chancellor sitting upon the Bench says to Anderson, standing at the bar, that the Queen, on account of the opinion which she has conceived of his knowledge, prudence, and integrity, has appointed him Chief Justice;
at which [says the chancellor] I am greatly pleased, for I have known of your proficiency while you were a student, counsellor, and serjeant, and although I am satisfied of your entire competency I wish to commend to you four things requisite in your office of judge: First, you must have knowledge of the law, as the Holy Spirit in the Psalm exhorts us, “Be learned, ye who judge the earth,” and for this you must continue all the time that you can in the study of your books, in order to retain what you have attained. Second, you must observe discretion in your judgments, especially upon demurrers in which there are four requisites for judges to observe, to introduce no general inconvenience in attempting to avoid a private mischief, to open no door for fraud to have passage, to insist not so much upon form as to neglect the substance, and to prefer the intent before the letter. In trials upon verdicts the judge should, if anything appears doubtful, exhort the jurors to find a special verdict, and in any case to make the evidence plain to the jury without direction one way or the other, and lastly to hear all the proofs of both parties to the fullest extent. The third requisite in justice is impartiality, which is best shown by neither favoring the poor man through pity nor the rich through fear or hope of reward. The fourth thing is diligence, which consists in expediting causes for the avoidance of expense and for the prevention of delays, caused by the death of a party or his decrease of substance, resulting in his loss of profit in that to which he is entitled. It is oftentimes seen that one who pursues his right would rather have a quick judgment against him than a deferred judgment in his favor. These things I advise you to hold in mind, for they tend to the advancement of equity and justice which are the life of the law, and I exhort you to pray continually to the omnipotent God for His direction in this office and function of judge, for you well know that all grace and government proceed from Him.
This was the exhortation of a chancery lawyer to one who had been a common law practitioner.
It is doubtful if better advice could be given to-day, except to add the warning where necessary that arises from a judge being subject to popular election. But the style of the advocate has wholly changed since 1488. Instead of the short, clear, terse remarks of counsel, the arguments have become long and exhaustive, accompanied by an endless citation of cases. Many of them are preserved in the old reports. These lawyers are the contemporaries of Shakespeare, and their language has the richness and metaphorical coloring of the Renaissance.
The greatest change, however, has come from the added duty of the advocate to put in evidence and address the jury, restrained by no rules of evidence. There can be no better instance of the conduct of the advocate, when restrained by no rules of evidence, than the method of Sir Edward Coke on the trial of Sir Walter Raleigh, which took place in 1603. Coke was the most learned lawyer of his time, but at this period he was seeking preferment. He was naturally of a mean and cruel disposition and at heart a savage. His behavior in this case was such that Lord Mansfield, a hundred and fifty years later, said: “I would not have made Coke’s speech in Sir Walter Raleigh’s case to gain all Coke’s estate and reputation.” But Coke’s conduct is on a par with all the lawyers’ conduct against criminal defendants in Elizabeth’s reign, who were prosecuted by government. Hearsay, letters written to a man, accusations without witnesses produced, slander and abuse, were all unscrupulously used. The cases sound like an investigation by a Committee of the United States Senate and show the same reckless abuse of power. This butchery by Coke is remarkable for the gallant fight which Raleigh made for his life.
The charge against Raleigh was high treason committed in the last days of Elizabeth’s reign, in trying to fix the succession upon Arabella Stuart instead of upon King James of Scotland, and in trying to bring in the Romish superstition, as it was called. The last charge was, of course, absurd, and advanced simply to prejudice Raleigh, who was a Protestant, a very Protestant of Protestants. The first charge was probably not treason at all.
The curious thing about the trial was that not a word of competent evidence against Raleigh was offered. The judges of the King’s Bench, supplemented by several of Raleigh’s enemies, were named to try him. A jury was impaneled, and then Coke began a violent and inflammatory speech, winding up by asking Raleigh if he had malice against the King’s children.
To whom speak you this? You tell me news I never heard of.
Oh, sir, do I ? I will prove you the notoriest traitor that ever came to the bar. After you have taken away the King, you would alter religion.
Your words cannot condemn me. My innocency is my defence.
Nay, I will prove all: thou art a monster. Thou hast an English face but a Spanish heart.
Let me answer for myself.
Thou shalt not.
It concerneth my life.
Oh, do I touch you?
Can any one conceive of the contemptible meanness of Coke in trying to prevent Raleigh from speaking and then turning to the jury with the remark “Oh, do I touch you?” Coke went on to charge Raleigh with negotiating with Lady Arabella Stuart, as to which he was to offer no evidence whatever.
Did I ever speak with this lady?
Coke did not answer, but made another mass of hearsay charges in the most savage manner.
I will wash my hands of the indictment and die a true man.
You are the absolutest traitor that ever was.
Your words will not prove it.
Coke continued his harangue and wound up by saying: “You, my masters of the jury, respect his cause; if he be guilty, I know you will have care of it, for the preservation of the King, the continuance of the Gospel authorized, and the good of us all.”
The most irritating thing about Coke is his bloodthirsty zeal against Raleigh’s life while with his sniveling assumption of hypocritical piety he talks of the continuance of the Gospel authorized. The loveliness of the Gospel ideal of mercy and kindliness was as much wasted on Coke as it would have been on a saber-toothed tiger.
Raleigh, refusing to be led off into such a matter as “the continuance of the Gospel authorized,” whatever that might mean, stuck to the point of the evidence against him and responded: “I do not hear yet that you have spoken one word of evidence against me. Here is no treason of mine done. If my lord Cobham be a traitor, what is that to me?”
All that he did was by thy instigation, thou viper; for I thou thee, thou traitor.
It becometh not a man of quality and virtue to call me so. But I take comfort in it, it is all you can do.
Hereupon Chief Justice Popham, a craven example of judicial servility, well knowing that Coke’s conduct exceeded all bounds of decency, and that it was the duty of the court to protect the prisoner, since he could have neither counsel nor witnesses, did not reprove Coke, but intervened with this cowardly imbecility: “Sir Walter Raleigh, Mr. Attorney (Coke) speaketh out of the zeal of his duty, for the service of the King and you for your life; be valiant on both sides.”
After this opening of Coke where the jury was not warned that Coke was making charges, not offering proof, the evidence began. An examination of Cobham taken privately and not subscribed by him was read with not one syllable of evidence in it, yet containing some vague, indefinite statements as to Raleigh, whereupon Raleigh said: “Let me see the accusation. This is absolutely all the evidence can be brought against me. Poor shifts! You, Gentlemen of the Jury, I pray you understand this. This is that which must either condemn or give me life, which must either free me or send my wife and children to beg their bread upon the streets. This must prove me a notorious traitor or a true subject to the King.”
Raleigh showed how the deposition had been concocted; and Popham acknowledged that Cobham did not wish to sign it, and that he (Popham) afterwards tried to persuade him to do so, but Cobham would not sign. Coke now made another bitter speech full of railing accusations and seemed to be at the end of what he had to offer. Thereupon Raleigh made the point that two witnesses were necessary against him, which was undoubtedly the law in high treason and afterwards was so held. But Coke denied this to be the law and Popham and the subservient judges held with him. But Coke knew better, for he at once began hunting for some corroborating evidence.
Raleigh demanded the right to be confronted with Cobham, but this was denied him upon the singular ground that Cobham, if brought in, might not stand by his charge. Raleigh, of course, was right in asking that the witness who was available should be called before the court. The right to be confronted by the witness is in our law a constitutional right, except in tribunals or bodies that care nothing for the Constitution. It was ruled in Raleigh’s case that the law of England permitted as proof a deposition that the witness had refused to sign and that the prosecution should not call the witness. But Coke knew that the point was good, for another deposition, of no value, was then read and a witness was sworn who said that he heard a man say: “The King shall never be crowned, for Don Raleigh and Don Cobham will cut his throat ere that day come.”
What infer you upon this?
That your treason hath wings!!
Raleigh then urged that Cobham had afterward denied the accusation fathered upon him, saying: “If truth be constant and constancy be in truth, why hath he forsworn that that he hath said? You have not proved any one thing against me by direct proofs.”
Have you done? The King must have the last.
Nay, Mr. Attorney, he which speaketh for his life, must speak last. False repetitions and mistakings must not mar my cause. You should speak secundum allegata et probata. I appeal to God and the King in this point, whether Cobham’s accusation be sufficient to condemn me.
The King’s safety and your clearing cannot agree. I protest before God, I never knew a clearer treason.
This was too much even for Lord Cecil, who had been made a Commissioner because he was an enemy of Raleigh. It is characteristic of the times that Cecil was so degraded as to be willing to sit. Yet even he intervened, saying: “Be not so impatient, good Mr. Attorney, give him leave to speak.”
If I may not be patiently heard, you will encourage traitors and discourage us. I am the King’s sworn servant and must speak.
Here Coke sat down angry, “in a chafe,” and would speak no more, until the Commissioners and Judges, fearing the King’s displeasure, urged and entreated him. Then he made another long speech not any more to the point. Sir Walter Raleigh interrupted him and said: “You do me wrong.”
You are the most vile and execrable traitor that ever lived.
You speak indiscreetly, barbarously, and uncivilly.
I want words sufficient to express thy viperous treasons.
I think you want words, indeed, for you have spoken one thing half a dozen times.
This was a body-blow to Coke, who was no match for Raleigh.
Thou art an odious fellow, thy name is hateful to all the realm of England for thy pride.
It will go near to prove a measuring cast between you and me, Mr. Attorney.
Well, I will now make it appear to the world that there never lived a viler viper upon the face of the earth than thou.
Coke then drew a letter out of his pocket written by Lord Cobham and read it to the jury. Then Raleigh pulled out of his own pocket another letter written by Cobham. In it Cobham protested that Raleigh had never been connected with him, nor did he know of any treason of Raleigh’s.
Now I wonder how many souls this man hath. He damns one in this letter and another in that.
Raleigh had so well withstood the brutal browbeating of Coke that even his enemies were affected, for of the two men first to report the trial to the king, the first said that never any man spoke so well as Raleigh in times past, nor ever would in time to come; the other said that when the trial began he was so led by the common hatred that he would have gone a hundred miles to have seen Raleigh hanged, but he would, ere he parted, have walked a thousand miles to have saved Raleigh’s life.
The jury, who must have been a set of hardened ruffians, knowing what was expected of them, without being charged, retired and in fifteen minutes brought in a verdict of guilty and Popham pronounced a sentence of death which was not then carried out. Raleigh lay for years in the Tower a prisoner. It was in that time that he showed his literary genius. Knowledge and scholarship
This was probably the best part of his life. Later he was out of prison for a time. But at the end of many years he was brought again before the court and resentenced upon the old verdict, Raleigh saying after the award of execution on the fourteen-year-old judgment: “Here I take God to be my judge, before whom I shall shortly appear. I was never disloyal to his Majesty, which I will justify where I shall not fear the face of any King on earth.”
Thus by the brutality of Coke, who passes as a great lawyer, was done to death one of the bravest and most gallant gentlemen, most richly endowed with wit and ability, that England has ever produced. Yet this was possible because there were no rules of evidence, and because the judges in the face of popular sentiment were utterly craven. Coke received his reward. He became Chief Justice of the Common Pleas and later Chief Justice of the King’s Bench. He now changed his habit of servility and was dismissed. He then turned patriot, thus proving the satirical definition that Johnson was later to give in his Dictionary of “patriotism,” that it is “the last refuge of the scoundrel.”
We turn from this depressing trial and this state of the criminal law to the enlivening one of fees, always to lawyers a sacred word. In this connection it is to be said that money was worth twenty times what it will now buy. A celebrated lawyer of this time was Richard Kingsmill. A letter still extant says: “For Mr. Kingsmill it were well doon that he were with you for his authority and worship, and he will let for no maugre, and yf the enquest passe against you he may showe you sum comfortable remedy, but, sir, his coming will be costly to you.” The childlike confidence in the high-priced lawyer is touching. But the fees seem ridiculously small. We know that the Goldsmiths’ Company of London paid a retainer of ten shillings. “A breakfast at Westminster spent on our counsel” cost one shilling sixpence. Serjeant Yaxley’s retainer from the litigious Plumpton for the next assizes at York, Notts, and Derby, was five pounds, and a fee of forty marks, if the Serjeant attended the assizes.
It is more interesting to one of sound digestion to turn from such fees to a picture of the lawyers in their hours of entertainment and feasting. In social entertainments the Inns shone. Costly feasts, magnificent revels, masks, and plays, where the royal family attended, the splendid celebrations of calls of serjeants, the feasts given by the readers, are all fully described in contemporary annals. We read of “spiced bread, comfits and other goodly conceits, and hippocras,” and the bill of supply of one of the feasts, comprising “twenty-four great beefs,” “one hundred fat muttons,” “fifty-one great veales,” “thirty-four porkes,” “ninety-one piggs,” through endless capons, grouse, pigeons and swans to three hundred and forty dozen larks, gives an idea of the lawyers’ carnivorous gormandizing. One might think that these men who had so much time for the Scriptures would have found that incident where at the beginning of the Book of Daniel the Prophet so effectively demonstrated to the Persian King the superiority of vegetarians.
At just this time Coke attempted to destroy the power of the court of chancery to remedy the injustice of the common law courts. Coke was a very narrow-minded man to whom justice was nothing. The chancellor was Lord Ellesmere, who adorned his decisions by frequent and none too apposite quotations from the Scriptures. Coke attempted to use the process of contempt against the injunction of the chancery court. The matter went for decision to King James I. Though not much of a Solomon, James acted upon the advice of Bacon and upheld the chancery court. The chancery bar was strong and took an active part in the fray. The victory of the chancery court was complete. But Coke by his combination of Puritanism and hypocrisy had persuaded the Puritans into an exceeding animosity against the chancery court. Something here might be said of Bacon, who succeeded Lord Ellesmere as Chancellor, but Bacon’s career as a judge was not creditable.
The lawyers received little consideration from Cromwell. Passing this period when the Inns of Court were closed, we come to the Restoration in 1660, and find the bar entering upon a new career. At first it is hard to see any improvement over Coke in such a man as Jeffreys, but the bar was steadily growing better. All through the eighteenth century, lawyers were becoming more liberalized. The century began with a great judge, Sir John Holt. He ruled the common law for a long period. The new business of banking and bank notes was to be given its set of rules. Holt was to some extent learned in the Roman law as then taught. He boldly avowed his opinion that practically everything in the English law had come from the civil law. At one stroke the Roman law of bailments was introduced by Holt into English law. He settled the principles of the new law of agency partly from the old law regarding master and servant but mainly from the principles of the Roman law.
A separate class of lawyers called proctors and advocates had grown up, who practised in the ecclesiastical and the admiralty courts. The advocates corresponding to barristers were called Doctors, and their organization was called Doctors’ Commons. The admiralty court, especially as a prize court, was of ever-increasing importance. Divorce cases and matters of probating and executing of wills required more and more legal work. This bar was called that of the canonists and civilians.
England was now in her great career as a trading nation. The law merchant was yet needed to be introduced and a little later the greatest of English judges, Lord Mansfield, became Chief Justice of the King’s Bench. He was a Scotchman, who when he was fourteen saw the highroad to England and took it. He never returned to the land of his birth. At last there was on the bench a judge who had knowledge enough to have sat as a Roman judge in the age of Antonines, and to have decided cases in accordance with the Roman law. He introduced into the common law the law pertaining to commercial documents. The law of shipping, insurance, partnership, and of recovery of money on equitable grounds in all the relations covered by the Roman quasi-contract was settled by Lord Mansfield. He tried to liberalize even the English land law.
There was a rule firmly fixed in English law called the Rule in Shelley’s Case, which was invented under the Yorkist kings in order to make land more readily alienable, but had in fact come to act in precisely the opposite way. In the case of a will Lord Mansfield held that the plainly expressed intention of the testator should govern and should displace the ordinary result of the Rule in Shelley’s Case. In other words, he held that the rule was merely a method of ascertaining intention. If the intention was otherwise plainly expressed, there was no need of invoking the rule. Immediately there was a concerted and unanimous howl from the real property practitioners. Hargrave handed up to Lord Mansfield his own written opinion on that very title given when Mansfield was a barrister. There was a painful scene. Mansfield was extremely disconcerted. He had none of the aplomb of the great Chancellor Lord Westbury. When an opinion of Westbury’s as a barrister was handed up to him and he glanced over it and saw that it was to the exact contrary of an opinion he had just delivered as Chancellor, he was not at all abashed. He merely observed: “I wonder how a man capable of writing such an opinion could ever have attained his present exalted position.”
Twelve years after Mansfield reached the bench, one of the greatest cases ever heard before the English House of Lords came on for hearing. The highest appellate jurisdiction in England was that of the Lords. In 1701 had come the Union with Scotland and the English House of Lords became the ultimate court for Scotch appeals. In 1769 was heard the appeal in the Douglas case—a case remarkable for its romantic circumstances, for the great material interests involved, and especially for the eminence of the counsel engaged. It will serve to illustrate the lawyers and the practice in England just before our Revolution, when lawyers in the Colonies were still obtaining their legal education at the Inns of Court in London.1
While in form the case was an appeal in a civil case, in essence it was a trial of a dead woman, Lady Jane Douglas, of a descent ancient and illustrious enough to satisfy the cravings of the wildest romancer. The House of Douglas, the noblest in Scotland, had many branches. Its elder line was the Black Douglas, and had the title Earl of Douglas. In ballad and in story there is nothing more stirring than the life of the Black Douglas who fought with Robert the Bruce and at last set out carrying his king’s heart to lay it in the Holy Land. The Red Douglas, Earls of Angus, became heads of the house after the ruin of the Black Douglas, and enjoyed the great estates of the lordship of Douglas. They were among the most powerful of Scotch nobles and successively became Marquises of Douglas and of Angus and Dukes of Douglas. The Master of Angus (the eldest son of old Archibald “Bell-the-Cat,” Earl of Angus, whom we read of in Marmion), with one hundred knights of the Douglas name, each followed by his retainers, died in that devoted ring around King James, on
One Earl of Angus was the grandfather of King James VI of Scotland and I of England.
At last, in 1746, the man who was head of the house, Archibald Douglas, Duke and Marquis of Douglas, Marquis and Earl of Angus, the premier peer of Scotland, was a saddened recluse, who had never married and had quarreled with his only sister, Lady Jane, a beautiful but wilful and headstrong woman, with a tendency, irritating to her brother, to encourage the addresses of fascinating and penniless gentlemen, while she rejected every suitor who, in her brother’s judgment, was fit to marry his sister. Two duels her brother had fought on her account. In the second duel he had killed a bastard cousin who had presumed to woo his sister. The brand of Cain had driven him into complete retirement. Pressed by her brother to marry, Lady Jane had refused, until they had become completely estranged. She lived most of the time in Paris with the Scotch Jacobites. The two differed even in politics. The Duke stood by the Hanoverian succession, while the sister was a partisan of the exiled house of Stuart. But at last, a woman of forty-eight, she married secretly an old suitor, Colonel Stewart, a ruined and spendthrift Jacobite who had been out in the Forty-five. The couple, without publicly declaring their marriage, had gone to Paris, where the story begins with the birth to Lady Jane of twin sons when she was forty-nine, although it was contended that she was actually fifty-one. The parturition was not impossible, but was, to say the least, very unusual. Before this she had written to her brother disclosing her marriage; he in bitter disgust had not answered but had cut off her allowance; now she wrote again, telling him of her new happiness and that she had named the elder boy Archibald after him, and still the Duke answered not a word.
The next heir after Lady Jane’s son was the Duke of Hamilton, a child descended from George Douglas, a younger son of the Angus line, who more than a hundred years before had married Anne, in her own right the Duchess of Hamilton. The members of this family were called the Douglas Hamiltons and they were very powerful through the immense Hamilton patrimony. They seem to have gotten to the Duke of Douglas with whispered accusations that Lady Jane and her adventurer husband were attempting to palm off a supposititious child as the heir of the Douglas lands. He believed them and, highly incensed, made a settlement of his estates on the young Duke of Hamilton. Lady Jane hearing of this came back from France, penniless. Her husband fell into a debtors’ prison in London, but she fared on to Scotland; she vainly sought to see her brother, but was turned away from the door of Douglas Castle. Soon the younger twin died, and broken by grief and anxiety, Lady Jane passed away in poverty and actual want. But now the spendthrift husband came into his own, an elder brother died and he became Sir John Stewart and settled 50,000 marks on his son. In explanation of this seeming prodigality in a Scot it should be said that these were Scotch marks, one-tenth the value of the English mark of thirteen and a half shillings. Soon Sir John also died, and both Lady Jane and her husband, knowing the hand of Death to be laid upon them, solemnly asserted that the boy Archibald was their son. It ought to have required exceedingly strong proof to overcome the almost conclusive presumption arising from such evidence.
The Duke of Douglas then married a very distant relative, Miss Margaret Douglas, a ci-devant beauty, who took up the child’s cause and, in spite of many rebuffs, at last induced her husband to listen to reason and persuaded him to revoke the settlement on the Hamilton heir. In his last illness he acknowledged his nephew as his heir. Ten days later, in 1751, the Duke was dead, and Archibald, the son of Lady Jane, whose sad story had aroused universal compassion, reigned in his stead. But the Hamilton guardians were not idle. They scoffed at what they called a miraculous conception. Their agents went over to France and by a lavish use of money came back with a mass of evidence to show that Archibald was the son of a Parisian glassblower bought by Lady Jane for the occasion of her pretended accouchement. The widowed Duchess of Douglas had had herself appointed the boy Archibald’s guardian and money was not wanting. She in her turn went over to Paris and spent her funds still more lavishly to unearth the Hamilton plot.
An action was now begun by the Hamiltons in the Scotch court and the cause was heard in 1767 before the Court of Session, consisting of fifteen judges. Scotland had the Roman procedure. The court, by the original eight to seven decision, held for the Hamilton. There was an immense popular outcry, the mob smashed the prevailing judges’ windows, the militia was called out, and it looked almost like a civil war in Scotland between Douglases and Hamiltons.
An appeal was taken to the English House of Lords, and the great Douglas connection rallied round the young heir. First in power came the Duke of Queensberry and Dover, a great personage at court, head of a younger illegitimate Douglas line, also the Earl of Morton, another powerful Douglas, and the Duke of Buccleuch, who in his youth had been a rejected suitor of Lady Jane. But strongest and best of all the Douglas phalanx was the imperious ruler of the great world of fashion, the Duchess of Queensberry, once Catherine Hyde, a reigning toast and noted beauty, great-granddaughter of Lord Chancellor Clarendon and cousin of two Stuart Queens of England, Queen Mary and Queen Anne, the daughters of James II by his first marriage with Clarendon’s daughter. She was a great wit with a bitter tongue, in her younger days a patron of letters, the friend of Congreve, Pope, Prior, and Gay. Now in 1767 she was an old woman, faithful to the fashions of her days of beauty, powerful at the court of the young king, George III. There is a vivid description of her Grace of Queensberry, as she was a few years before this time, in the thirty-fourth chapter of Thackeray’s Virginians, when she dawned on young Henry Warrington’s tea and ball. There is pictured a battle royal between the old Duchess and the friend of her youth, that Beatrix Esmond who, in Thackeray’s Esmond, was the heroine of the finest scene in all historical fiction, where Colonel Warrington broke his sword and renounced all allegiance to the faithless Stuart race.
Both Hamiltons and Douglases began canvassing the House of Lords for votes on the appeal, for in those days all peers voted upon law questions as well as other questions in the House of Lords. In this business the Queensberry Duchess was a past grand mistress. She rapidly disposed of all the proselytizing of the Hamiltons. In the meantime the appeal papers had come up before the Lords, and the Scotch law agents of the Duchess of Douglas came down to London to look over the ground and select their counsel. One evening soon after their arrival they wandered into the celebrated coffee house of Nando’s. They sat sipping their wine with true Scotch reserve.
At a near-by table a discussion arose between some gentlemen presumably barristers. One was defending the Scotch decision in the Douglas case. A large man of thirty with a magnificent head and great beetling brows boomed into the discussion, attacking the ruling. This was the redoubtable Edward Thurlow, afterwards Lord Chancellor and the despotic ruler of the House of Lords, then a briefless barrister coming into practice, a regular habitué of Nando’s and devoted to its excellent punch. After pouring forth a flood of argument, the punch becoming exhausted, Thurlow rolled home to his chambers. But he had convinced the Scotch agents of his power, for in the morning an immense roll of papers was delivered, marked with an astonishing fee, accompanied by a no less astonishing retainer, and Thurlow was named to prepare the great Douglas case for the appeal in the House of Lords. He was at once presented to her Grace of Queensberry and paid courtly tribute to her fading charms. She was immensely taken with him, pronounced his conversation the most charming since Lord Bolingbroke. Her lawyer, she asserted, must not appear in the stuff gown of a junior, so she sought the king, George III. The silk gown of a King’s Counsel, which would not have come to him until after years of success at the bar, was granted to the rising barrister at the request of the young King himself, and Thurlow’s fortune was made.
At last the hearing came on before a crowded House of Lords. The Lords had been thoroughly canvassed. The decision depended on Lord Camden, the Chancellor, and Lord Mansfield, the Chief Justice, for the majority of the Lords, while eager to vote for the Douglas claimant, would not disregard the opinion of the two law lords. If the law lords differed the majority would blindly follow Lord Mansfield. Appearing for the Douglas claimant were Thurlow, who had prepared on paper a powerful statement of the case, Sir James Montgomery, the well-known Scotch advocate, and Sir Fletcher Norton. On the other side were Charles Yorke, the Attorney General, the second son of Lord Hardwicke, the great Chancellor, soon himself to be Chancellor, and Alexander Wedderburn, called “Sarcastic Sawney.” He afterwards became Lord Loughborough and Chancellor as Earl of Rosslyn, and was just now enjoying an immense reputation for his successful defense of Lord Clive, the conqueror of India. The actual leader was Dunning, the head of the bar, the man whose great argument before Lord Camden had destroyed general warrants, a man uncouth and ungainly, but with a great genius hidden behind a forbidding exterior. He was a most persuasive speaker, once supposed by many to have been Junius, that “shadow of a mighty name.” He was now Solicitor General with a splendid political career before him, which he sacrificed like a true advocate and a brave gentleman by taking the side of the American colonies; yet the American is rare who remembers or even knows of that unselfish act.
Thurlow opened for the appellant and gained immense applause by his wonderful dissection of the evidence. He made a savage attack on the agent of the Hamiltons, who had prepared the Hamilton testimony, accusing him of bribery and subornation of worthless French witnesses. Then came the Scotch Advocate General, thoroughly explaining the evidence and the bearing of the Scotch law. Next came Wedderburn for the Hamiltons; he made the most brilliant speech. Charles James Fox, no mean judge, said that Wedderburn made the best speech that he had ever heard on any subject. Horace Walpole wrote that he spoke with greater applause than was almost ever known. Charles Yorke followed, to the great disgust of the Douglases, for the Duchess of Douglas thought that she had retained him and when she found that he had taken a retainer from the Hamiltons, she said to him: “Then, sir, in the next world, whose will you be, for we have all had you?” This was almost prophetic, for in a short time poor Charles Yorke, become Lord Chancellor in spite of a solemn promise, lay dead, probably a suicide, in utter shame. Then after Dunning the case was closed for the Douglases by Sir Fletcher Norton, once Attorney General, a bold and able pleader noted for his clearness of argument and carelessness as to facts, of whom Lord Mansfield said that it was most difficult to prevent him by his art from misleading a jury. He was known to the political pamphleteers of the time as “Sir Bull-Face Double Fee,” which describes accurately both his unabashed front and the large emoluments of his practice.
The throng, many of whom had wagered money on the result, waited for the law lords to give their opinions. Lord Camden, thoroughly primed by Mansfield, spoke giving his opinion for the Douglas claimant. He was followed by Lord Mansfield (himself belonging to a younger line of the ancient Scotch house of Murray). Lord Mansfield’s speech has been criticized, but it is very eloquent, and he knew his audience. He did not discuss the evidence (that had been fully gone over by Lord Camden); but he told in a moving way how Lady Jane in her distress had come to see him when she came from France, the impression of goodness she made upon him, and her pitiful last years of sorrow and suffering. He protested that he could not believe that a lady of her breeding and illustrious descent, a woman of her proud and noble nature, could be guilty of such a heinous fraud. Then the whole House indorsed the opinions of the law lords. The judgment of the Scotch Court for the Hamiltons was reversed with but five dissenting voices, and the Douglas heir had won, but the title of Duke and Marquis of Douglas was extinct, and those of Marquis of Angus and the very ancient earldom of Angus passed by the Scotch law to the Duke of Hamilton. The King at once created the Douglas heir Lord Douglas of Douglas Castle, but the male line has not survived. His descendants are the Douglas Homes, Earls of Home.
But the case was not over. The Scotch agent whom Thurlow had denounced promptly challenged him while the case was being argued. Thurlow at once accepted, to fight when the case was finished. So the next morning after the decision Thurlow proceeded to Hyde Park. On the way he stopped and ate an enormous breakfast; it might be his last. The principals were set at ten paces, they discharged their pistols. Being lawyers both missed, of course. Then they drew their swords and advanced upon each other, when the seconds intervened and stopped the duel. But let us record for the courage of the one combatant and the fairness of the other, that the Scotch agent gallantly acknowledged that “Mr. Thurlow advanced and stood up to him like an elephant.”
It has been noted before that the bill of attainder was revived against Lord Strafford. It was supposed to be a judicial proceeding. It had a minor form called a bill of pains and penalties. The difference between the two forms was merely in punishment. Such a proceeding was used by an English king in an attempt to divorce his queen, and it gives another picture of English law in 1820. An interesting volume has been published upon this trial of Queen Caroline, but the best summary of the trial is in Atlay’s Victorian Chancellors, the best of the English books on judges and far more carefully done than Lord Campbell’s Lives of the Lord Chancellors.2
Every one knows the story of how that heartless and profligate dandy, George IV, when Prince of Wales, after his illegal marriage with Mrs. Fitzherbert, was persuaded, in order to get his debts paid, to marry a German princess. In 1795 his cousin, Caroline of Brunswick, was selected for this honor. She was the daughter of that Duke of Brunswick who afterwards fell at the battle of Auerstadt, usually called Jena, and sister of “Brunswick’s fated chieftain,” who in Byron’s lines is at the scene of revelry in Brussels as Napoleon approached for the battle of Waterloo. This Duke rushed from the ball to the field and fell at Quatre-Bras two days before Waterloo.
The Princess was not very prepossessing or refined, and when she was brought to London and the Prince of Wales saw his proposed bride out of the wilds of Brunswick, he hastily called for brandy to enable him to endure the sight; but he managed to get through the wedding ceremony with the help of more copious draughts of brandy. After a daughter had been born to the pair the king developed such a hatred against his wife that he refused to live with her. Even then her indiscretions were the subject of a confidential investigation. When the Prince became Regent she was induced by a liberal allowance to travel in the Mediterranean countries. She dragged in her train a curious retinue of her own choosing. Sad tales of her misdoings came back to England and Sir John Leach, the Vice Chancellor, sent out a commission to investigate. When the old and insane King George III died, the Prince Regent became George IV and Caroline was by right of marriage Queen of England. Their only child, the beloved Princess Charlotte, who had always taken her mother’s side, was dead with her newborn child, in the first year of her marriage. Even Byron, who hated royalty, has left a noble elegy on the fair-haired Daughter of the Isles.
In spite of her legal advisers, Queen Caroline came back to England, eagerly welcomed by the mass of the people, and insisted upon taking her place as Queen of England. Her husband’s conduct was looked upon as so much worse than hers could possibly be that the great majority of the middle and lower classes were her warm partisans. Curiously enough, the brothers of the King divided upon the question. Two of them tried to argue about the matter in the House of Lords and became so heated as to scandalize the proceedings by an ordinary fist-fight. The King insisted on divorcing the Queen absolutely. He particularly objected to her being prayed for in the church service, although by his own contention she greatly needed the prayers. No court in England had jurisdiction except Parliament. A bill of pains and penalties was proposed in the House of Lords, adjudging her guilty of marital misconduct, depriving her of the title of Queen Consort and absolutely divorcing her from the King. This bill, like any ordinary legislative divorce proceeding in England, was required to be proven by evidence upon a full hearing.
The Queen, as she was entitled, had her own Attorney General and a Solicitor General. First came Brougham, her Attorney General, afterwards leader of the House of Commons and later Lord Chancellor as Lord Brougham, in some ways the most efficient advocate of his time, destined to live far into that century. Next came Denman, of a peculiarly brilliant and unsullied fame. Next came Tindal, afterwards Chief Justice of the Common Pleas, and Wilde, afterwards Chancellor as Lord Truro, an able and determined man. Williams, the law reformer, and the civilian, Dr. Lushington, made up the array of counsel for the Queen. Those who have read the book, Astarte, of a scoundrelly grandson, where Lord Lovelace attempts to cover with slime the memory of his grandfather, the great Byron, and those who have read the literature evoked by the book, can be informed of the very questionable conduct of Lushington in that matter of baseless slander.
The counsel for the King were the Attorney General, Sir Robert Gifford, afterwards Chief Justice of the Common Pleas and Master of the Rolls as Lord Gifford, who died at the untimely age of forty-nine. Next him the Solicitor General, Copley, is of peculiar interest, for he is the only English Chancellor who was born in America. In 1772 he first saw the light in Boston; he was the eldest son of the painter John Singleton Copley. His mother was the daughter of that Boston merchant whose cargo of tea the Boston Tea Party dumped into the harbor. The family being Loyalists left for England just prior to the Revolution. The son was educated at Cambridge and studied for the bar. He once came over to Boston to see what he could obtain of his mother’s property, which had been confiscated. The United States had never performed the clause of the treaty which required the confiscated property to be returned. It is needless to say that Copley obtained very little from the Bostonians, but Copley Square and the name Copley Plaza for a hotel may be considered a kind of belated expression of a desire to make restitution. Lord Lyndhurst’s recollection of his visit never led him to visit Boston again. As a young lawyer Copley came into prominence for his wonderful skill in cross-examination and for an extraordinary clearness of statement in weaving together in one luminous whole the facts and circumstances of an intricate case. He was destined to be four times Lord Chancellor as Lord Lyndhurst, and though born before the Revolution he lived to hear the news of Gettysburg and of the fall of Vicksburg. One of the extraordinary scenes in the House of Lords was Lyndhurst, ninety years old, his eyesight gone but with unspent vigor and memory undimmed, “with a mind unworn, undebased, undecayed,” delivering without a note an exhaustive speech, reviewing the complicated diplomatic relations of England with Russia over a long period of years. He was a mental giant.
Another of the counsel for the King was the technical lawyer, afterwards Baron Parke of the Court of the Exchequer, who ruled that court for years and by his technical rulings rendered the Exchequer Reports of his time such a perennial fountain of injustice. He was known as Baron Surrebutter.
The cause was opened in a crowded House of Lords. The approaches to the Parliament Building were barricaded. A regiment of the Guards was posted at Westminster Hall. The Household Cavalry patrolled the streets. The Queen arrived, surrounded by a cheering mob. The foreign witnesses for the King, who had been subjected to rough treatment by the populace when they landed at Dover, were thoroughly washed, newly clothed, and herded together in a separate building under military guard, for around it constantly prowled a mob, inflamed by the usual lower-class hostility toward foreigners, eagerly seeking a chance to maltreat those Italians who had been brought over to testify against the Queen.
Gifford’s opening for the prosecution was a failure, but poor as it was the facts he unfolded were so bad that when he sat down the Queen’s case seemed lost. Even if she were not guilty of actual misconduct, her behavior had been so reckless as to render her unfit to be Queen. The first witness called was the Italian Majocchi, the Queen’s postilion, and when the Queen saw him she further injured her case by flouncing out of the House, the very feathers in her hair fluttering in indignation. The witness told his tale, but on cross-examination by Brougham his stupidity in continuously answering “Non me ricordo” ( I do not remember) to any question whatever, broke him down. The cross-examination of the Queen’s Swiss waiting maid, Demont, by Williams, along with Coleridge’s cross-examination of the Tichborne claimant, remains of classic fame in legal annals. At the close of the prosecution, on account of the powerful cross-examinations, the King’s proof was much battered; but then Copley arose and by his consummate skill, his ease, his suavity, and his genius for marshaling testimony, restored the case.
After an adjournment of several weeks Brougham as leader opened for the Queen in the supreme effort of his life; but there was too much oratory and too little attention to the testimony. He savagely assailed some of the witnesses. One paragraph of Brougham’s speech described one witness as “that hoary pander, the manner in which he told his story, the haggard look which gave him the appearance of an inhabitant of the infernal regions, and which must have reminded your Lordships of the great Italian poet’s description of a broad-faced tailor in Hell peeping and grinning through the eye of a needle.” Brougham’s recital of the wrongs of the Queen stirred the country to resentment. Especially moving was his description of the deserted wife, hearing for the first time from strangers of the death of her only daughter, long after she should have been informed from England, and before she even knew of the illness. He startled the King and the House of Lords by the threat that he could recriminate with evidence of the King’s misdoings. His peroration with his invocation to the Lords has always been admired by those who love florid oratory. It is a remarkable contrast to Burke’s famous peroration in the Warren Hastings trial, modeled on Cicero’s peroration against Verres, and it is not so good even as that of Thaddeus Stevens in the impeachment of President Johnson.
But when the witnesses were examined for the defense, it was a different story. The Queen’s case probably would have been as good if no witnesses had been called. While the Queen’s domestic servants supported her, one English officer in her suite admitted damaging facts, and Copley cross-examined another Lieutenant Flynn, who was evidently trying to shield the Queen, until the witness collapsed and was taken out of the court in a fainting condition. Some of the witnesses were too dangerous to call, although they had been unwisely mentioned by name in Brougham’s opening speech for the defense. But Brougham fortunately found that one witness for the prosecution had been sent away contrary to a stipulation. He suddenly demanded his presence. The man who had sent him away was asked by Brougham, “Who is your employer?”—striking at the King. Loud cries of “Order” were heard, and then Brougham, whom nothing could intimidate, came back with his famous passage, quoting Milton’s Paradise Lost:
This cut George IV and added an element of amusement. The Prince was called the First Gentleman of Europe. He was vain of his person, even though he trundled before him a very pendulous and protuberant abdomen. He complained that Brougham might have spared his shape, for everybody allowed, whatever faults he had, that his legs at least were not undistinguishable.
At last the witnesses were finished and Denman arose to sum up the evidence. His speech is wonderful until the very close. There he ruined it by quoting the famous words to the woman taken in adultery: “If no one come forward to condemn thee, neither will I condemn thee. Go and sin no more.” In defense of a woman charged with misconduct who was asserting her innocence, this may be called an unpardonable instance of lack of judgment. On the spot some wag invented the epigram, which ran over the city:
Dr. Lushington, who followed Denman, was a divorce practitioner, and he dealt with the evidence. In reply came first the Attorney General Gifford, who now redeemed his failure in opening. That often used device, the comment on the failure to produce witnesses within call who know the facts, was used with crushing effect. Finally Copley closed, ridiculing Denman and Brougham. One of his classical quotations from the thirty-seventh ode of the first book of Horace, describing Cleopatra before the battle of Actium, is noted for its aptness:
The maddened queen nursing the wildest hopes and drunk with fortune’s favors, with her filthy herd of abandoned ruffians, is plotting ruin ’gainst the Capitol and the Empire.
This was a double hit. It struck both the Queen and her attendant mob. Her main supporter, Alderman Wood of London, called “Absolute Wisdom,” redeemed himself by being the father of Lord Chancellor Hatherly.
A dispute now arose among the Lords. Certain of them would not agree to convict the Queen and leave her undivorced as Queen of England. Being mainly respectable gentlemen, they balked at a conclusion which left a convicted adulteress Queen of England. But the Bishops who sat in the House of Lords would not agree to an absolute divorce. These impracticable persons took literally, as so many other misguided persons have done, the solemn words in the marriage service: “Whom God hath joined let no man put asunder.” So the bill had but nine majority and the ministry abandoned it. Soon “the fickle reek of popular breath” turned from the Queen and the next year she died, asking for her coffin the simple inscription “Caroline, the injured Queen of England.”
Ever since 1700, at least, the leading lawyers had taken a prominent part in politics, and their services in the House of Commons as Solicitor General and Attorney General led to high judicial position. Blackstone’s famous lectures, called his Commentaries, were rewarded by a seat in the Common Pleas. He wrote the opinion in the appellate court known as the Exchequer Chamber, which reversed Lord Mansfield on the Rule in Shelley’s Case. Eminent barristers had an extraordinary field in the great state prosecutions. Wedderburn defended Clive; Law, known best as Lord Ellenborough, defended Warren Hastings. Brougham and Denman we have already seen in the Queen’s case, but all the advocates were surpassed by Erskine.3 In all history he is the greatest advocate that ever argued in court, except the Roman Cicero, who was more than an advocate and one of the greatest men of letters in literature. Later great English lawyers it is not necessary to mention, for the scene now changes with the attempts to reform the legal system. The reforms were, generally speaking, merely in procedure and administration; rarely were they directed to a change in the actual rules of substantive law.
Blackstone’s Commentaries are the high-water mark of the English complacency with the legal system. The first dissenting voice was that of Bentham. The reforms were brought about by leading judges and lawyers, but Bentham has received the credit for them. He had tried to be a lawyer and failed, and was thereby made certain that the law needed reforming. He began by criticizing Blackstone’s book and by denouncing the English law. For years he was not taken seriously by the English public or by the lawyers. His methods may be criticized. Instead of becoming thoroughly versed in the history not only of the common law but also of the civil law and thus becoming able to understand why the English law was in its then condition, he chose the easier path of an a priori theorist. There was no question that the method of pleading in both the common law and chancery needed changes. It was apparent to most enlightened lawyers that the rules which excluded witnesses from testifying had outlived their usefulness. Most of all was required the abolition of the disorderly and expensive system of double courts. Lord Mansfield had done much for the common law, but he was succeeded by narrow-minded practitioners who tried hard to undo his work. In the chancery court Lord Eldon, whose slow and dilatory methods caused most of the complaints against the chancery, opposed himself like a moss-grown promontory to every change. He lasted for a quarter of a century, while his court steadily went from bad to worse, although his opinions, when after long delay he arrived at them, were altogether sound.
It has become customary since Bentham’s death to exaggerate his services to legal reform. He was a man of wealth, able to hire secretaries, and he gradually accumulated a great mass of papers upon the subjects of a penal code, of the rationale of evidence and of methods of pleading. He devoted much material to what he called the science of legislation. He tried to formulate a constitution of government which he confidently believed would be suited to the needs of the Khedive of Egypt, to the newly established revolutionary Spanish-Indian republics in South America, and to the wild population of Mexico which is even yet constantly proving its inherent wildness. When Burr was nourishing his scheme of founding a state of his own somewhere in the neighborhood of Texas, Bentham aspired to play the rôle of Tribonian to Burr’s Justinian. Time after time Bentham proposed his rather shopworn constitution to those who imagined that something new could be designed in the way of a constitution for newly admitted states of this Union. This farouche sort of reasoning is a true measure of Bentham’s hopeless incapacity as a constitutional lawgiver.
It is not disputed that Bentham’s ideas on the subject of simplifying procedure and pleading both in the chancery and in the common law courts were mainly sound. His belief that the exclusion of the testimony of interested witnesses was a mistake has become generally accepted, although in most jurisdictions the idea that both sides should be given an equal chance to commit perjury has limited Bentham’s rules. It is still the law that if a man be deceased, whether the controversy involve the estate of the deceased or a firm of which he was a party, the living party against the deceased cannot testify to any conversation indicated to be equally within the knowledge of the party and the deceased. The law pronounces its deliberate opinion that under such circumstances the presumption is that the interested party as witness will not tell the truth. This conclusion is no doubt a wise one, but when the legal reformers had made a defendant a competent witness in a criminal case, they forgot to retain this wise and salutary rule, so that it is now the law generally in a murder case that the defendant, having killed the one who could correct his testimony, is left free to concoct in his own exculpation any sort of conversation or transaction with the deceased. Thus the reformers have made the law declare that where one is testifying against a dead man the one who will testify truthfully against the dead is certainly not one who has swindled him, but one who has killed him. A more imbecile conclusion cannot anywhere be found in the law.
The result of the Benthamite idea of evidence has been to remove almost every one of the incapacities of witnesses; but those arising from the marriage relation and from the relation of lawyer and client have been preserved. The other so-called confidential relations of medical treatment and of the confessional have not been recognized, although as an original proposition it seems hard to make any distinction between what a client tells his lawyer in order to be advised as to his legal rights and what he as a patient tells a doctor in order to be advised as to his bodily ailments and what he tells his confessor for the supposed redemption of his immortal soul.4 But the allowance of witnesses to an accused defendant and of counsel to argue his case not only to the court but to the jury, were not in any way due to Bentham.
In the penal law the improved treatment of prisoners and supposedly improved ideas in the matter of punishment are not due to Bentham but to others. Such things have resulted from an increasing civilization. The tendency of reformers to carry the ideas of criminal reform to impracticable extremes meets us now on every hand. No one disputes that there is such a thing as mental disease which may render a human being so abnormal that he is not responsible for his acts. The plain cases are where the physical manifestations of mental disease or defect are able to be seen. An epileptic with the unreasoning homicidal tendency of the epileptic status is not likely to escape notice. So it is in regard to many other kinds of mental disease. There are on the other hand many departures from normal lawful conduct by human beings which are or result in crimes without any manifestations of mental disease whatever.
There is a class of criminal reformers who seem to have reached the conclusion that there is a standardized human being who acts normally and lawfully and all human beings who depart from this standard are afflicted with mental disease. Since the disease is not shown by any physical affection or modification of the brain itself or its accessories, it can only be detected by conduct, and therefore the test is any departure from the normal, lawful conduct of a human being. The commission of a crime of turpitude at least, is proof positive of mental disease and lack of mental responsibility. It is, however, not questioned that in all civil matters the commission of torts or frauds is no proof of mental disease. None of the penologists is so foolish as to take such ground, but when the wrongful conduct shades off into crimes, then the mere fact of the commission of the crime is proof of lack of mental responsibility. The criminal diagnosticians have gone so far as to give a name to this sort of mental irresponsibility and the wide term used is dementia praecox. The term seems to mean that if a man is willing to risk committing a crime to obtain what he desires or covets, he has dementia praecox. Thus if a man goes out upon the street and robs a passer-by to get his money and is detected he has dementia praecox. If he escapes detection he is a mere ordinary person going about his affairs with normal mentality. If the man serves a term in the penitentiary and repeats the offense, the presumption of precocious madness becomes irresistible.
These criminal reformers go further and charge the mental condition of the robber, burglar, or murderer upon society at large. If they are right in this assertion, they must mean that society has no right to punish the victim of its processes. But they disclaim any such idea and say that the law has no right to put the person to death, but must segregate him and imprison him. This seems, then, to be simply the old argument against the death penalty, which is a purely religious development, founded on some idea of the peculiar sanctity of a criminal’s life while all former law laid stress on the innocent life sacrificed. These people claim that the criminal is the victim of a mental disease, generally hereditary, which he is likely to transmit to his progeny. They assert, so far as their conflicting ideas can be understood, that the victim of dementia praecox will not be cured by segregation and that he must be prevented from multiplying, for having inherited his condition he will transmit it.
The only possible answer to this contention is that society would better put its error to death. Why waste time and money on a being who, on their theory, ought to remain like the mule, without pride of ancestry or hope of posterity? The general result of the lucubrations of such people seems to be that they themselves are the persons with dementia praecox. Their abnormality is to consider a perfectly sane man a precocious dementiac if he goes so far as to commit a crime. They are like the alienist in Charles Reade’s Hard Cash who thought almost every one that he saw was a maniac, and it turned out that he himself was the maniac, for he progressed in his knowledge so far that the only safe place for him was a padded cell.
The law and the common sense of mankind have consistently refused to listen to the confused stammerings of the maudlin penologists that lead to no reasonable result. The legal test for insanity is the ability in the human being to comprehend the moral quality of his act. This is a matter of evidence and is to be decided in each case as it arises. Both law and morality are founded upon general human conduct, and mainly upon the tendency in human beings to conform in society to each other’s conduct. If a human being in regard to a crime shows, by his conduct either before or after his act, that he knows that he is not conforming to those human standards, he thereby shows that he comprehends the nature and quality of his act, for the two phrases describe precisely the same thing.
As an instance we may take a case that has excited world-wide comment as a frightful miscarriage of justice.5 Two young men in easy circumstances, of excellent education, showing by their conduct that they knew that they were doing a wrong and criminal thing, kidnaped a child whom they knew and who knew them, for the sole purpose of extorting money from the parents of the child. They wished the money for the particular purpose of supplementing what would be given them by their own parents for traveling in Europe. Their conduct showed that from the very beginning they contemplated murdering the child after they had obtained the money. They failed to obtain the money, although they attempted to do so both before and after murdering the child. Ingenuity in devising concealing circumstances, both before and after the act, was proven in complete detail. The callous cruelty of their conduct was apparent. Their intelligence and careful premeditation were no less apparent. The death penalty, of course, was the only punishment that could reasonably have been inflicted.
It was strenuously urged that society was in some way responsible for these young men. All that society had to do with it was that the general social conditions were such that their parents were enabled to accumulate property, to bring up these young men in comparative luxury, to educate them at institutions of learning, to furnish them with every incentive against criminal conduct. They, of all people, had no reason to complain of society, yet a stupid and ignorant judge, who never would have reached the bench except under the depraved elective system, for reasons best known to himself, thought that the death penalty would be too harsh a punishment for their young and tender souls and that these precocious criminals, who, of course, were afflicted, in the judgment of penologists, with dementia praecox, should be supported for life at the public expense. The administration of the law was thus thoroughly disgraced.
It is to be said for Bentham that in the domain of responsibility for crime, he was never one of these sappers and miners, trying to subvert the law. Like all reformers he had an exaggerated idea of the value of legislation. He professed to have a formula to determine the test of all legislation. His phrase was the greatest good of the greatest number. His good was determined by a balancing of pleasure and pain to find the utility of an act. Bentham has chapters in his Principles of Legislation headed Of the Different Kinds of Pleasure and Pain, and Of the Value of Pleasures and Pains, in which he betrays the most complete ignorance of psychology. To Bentham pleasure and pain are mere conditions of simple sensation, while the psychology of the human social mind shows that the higher pleasures or pains are complicated conceptions of the mind, and the state called happiness is not determined by pleasure or pain as a sensation, but by the individual’s realization that he is functioning in the best possible way that he is suited to act as a member of society. Bentham’s test is applicable to raw untutored men, not to civilized human beings in a complicated condition of society.
On the other hand social utility as a test of legislation has been acknowledged from the very beginning of legislation to be the reason for legislation and its test. What best subserves the public welfare has always been the goal, not only of legislation but of all law and all morality. But it is equally plain that what best subserves individual welfare will subserve the public welfare. This general social welfare cannot be predicted. It is the result of experience. Bentham’s test as he understood it was no test at all and never could be. His balancing of a man’s pleasure in killing another against the pain caused by the act is a low, disgusting performance, eminently worthy of Bentham’s impractical mind; but as a test of a law against murder it is unthinkable to a man capable of introspection. Murder as a crime is not to be determined by pleasure or pain. It is plain why Bentham had no appreciable effect upon England or English lawyers, nor did his codes appeal to any sound lawyer. But a Frenchman discovered Bentham and was able to introduce some order in his various disorderly manuscripts, and several books by Bentham were published. On the Continent he became a great jurist and has ever since enjoyed a wide reputation. His works came back to England by way of the Continent and they had considerable influence in adding to the sentiment for legal reform. But the English law was reformed by practitioners, not by theorists.
All through the nineteenth century the English Parliament went on improving the law in particulars which it would take too much space to set forth in detail. The system of land law was transformed and a registration of documents affecting lands was devised. The distinction between equity and law courts was abolished in the Judicature Act of 1873, which went into effect in 1876. By it the equitable rule was substituted for the rule of the common law, wherever those rules differed. A new system of county courts had been devised. The practice in chancery cases had been simplified and expedited. The practice in common law cases had also been expedited. The results have been excellent, until to-day it is, no doubt, true that the best, quickest, and surest enforcement of the criminal law and the most thoroughly enlightened administration of the civil law that exists in the world can be found in that island set in the silver sea, to which we owe practically all our legal conceptions and most of our legal rules.
There is one feature of the law as we look at it to-day, which is not law at all, which yet has an effect upon almost every legal relation. Early in this story it was pointed out that originally all law was pure custom and that the development of law would chiefly be in separating what were merely social customs or morality from those rules of social conduct which would gradually be determined to be of sufficient importance to be enforced as laws, and their violation forbidden by penal or monetary liabilities. One of the great achievements of the Roman jurists was in indicating what part of the social customs should be law and what matters should be left to be enforced as rules of morality or good behavior which have no other warrant than social estimation. The ordinary citizen lives his life without coming into contact with the courts. He manages to live a law-abiding life, because the ordinary and general conduct of a citizen is dictated by received ideas of the ways that are proper, customary, and conventional.
Most human beings have standards of conduct and follow them as readily as they avoid violations of law. Some of these standards have no moral significance whatever. They are as conventional as one’s clothes; but the human being is just as careful in his conformity to such standards as he is in his conformity to what he knows to be legal standards. But there are other rules which have a moral significance and they are not a little complicated by religious beliefs. The science of morals will never be an exact science because some men think to be right what other men think to be wrong. Yet in the rough most men at any given time in a particular social organization have the same ideas as to right and wrong. There are certain fundamental simple virtues such as honesty, probity, charity, goodness of heart, mercy, kindliness, compassion, cheerfulness, generosity, sympathy, self-restraint and self-control, and those best virtues of respect for the opinions of others and toleration and indulgence of their ways and ideas and of the expression of ideas differing from one’s own, which are traits that most men instinctively respect and admire.
These virtues have an intense social aspect. They render human intercourse genial and kindly. They give one standing, reputation, and character among his fellow men. The individual who has such qualities is so highly civilized that obedience to law is not only a pleasure but a matter of necessary conduct. Rarely does the absence of traits of this kind give rise to claims for legal redress; but they yet form a large part of law in an indirect way. Lawyers know that in the administration of the law a witness or a litigant whose conduct or whose testimony displays a violation of any of the ordinary moral virtues stands partially discredited before a court or a jury. Some particular circumstance of falsehood or double dealing, of cupidity or avarice, of disregard of others or lack of kindly social feeling, of harshness or brutality, or any of the hundred and one things that lawyers look for on the opposite side and dread when they appear on their own—matters, too, which often have no materiality to the legal merits of a controversy—may yet determine a cause before judge or jury. The necessity of appearing well to others, which is at the basis of all primitive law, is still the controlling factor in all social conduct. Those who think that a sharp and fast line can be drawn between law and morals or customary good conduct have had little experience with humanity. They may work out such a hard and fast line in a cloister or a library, but it will not endure for a moment in the light of everyday life. One who thinks that the words of the law or its rules sum up the whole content of law is grossly deceived. In some cases good morals are made a part of the law. As long as the law tells us, for instance, that a contract which is against good morals will not be enforced by the law, it is apparent that from day to day legal rights are to be decided upon the accepted rules of morality. Those who contend that morality concerns only the individual’s inner condition of mind, while law concerns one’s outward relations with other men, have no true conception of law in its practical bearing upon human conduct. The experienced lawyer knows that underlying the actual words of the law and determining the application of its rules, is a fundamental basis of inherited ideas of religion, morality, sentiment, emotion, and habitual thoughts resulting from general human experience which are mainly instinctive. These factors cannot be expressed in words nor thoroughly prophesied in action by any one however gifted. These things are of the substance of human nature, but the theorists on law and the legal reformers are constantly forgetting them.
Were it not, however, for the rules of law and the tribunals with their juristic methods and for the profession which constantly looks at matters from a legal standpoint, the very factors last spoken of would tend to render legal rights incapable of discernment and expression. It is shown by the history of the law that invariably at some stage of human society, before written language was devised, a particular class was developed which had decisive knowledge of the laws. The method of transmission of such unwritten law was by oral tradition. It is also shown by the history of the law that after written language was devised, there came the demand that the laws should be put into writing so that they would no longer be the possession of this class. When the laws were put into writing, there was developed a legal professional class. Beneath this development is the evidently widespread human experience that special knowledge on a particular point will produce a better conclusion than lack of knowledge. As soon as law becomes rational and the result of reasoning processes, the necessity appears for specially trained minds whose legal knowledge and ability to reason on legal relations are so developed that they are able to an extent to disregard the conflicting moral judgments of ordinary men. Those who ask that the law be made so plain that every man may be his own lawyer, and who ask that the courts be filled with men who know less law and more justice, are simply quarreling with the constitution of the human mind. One might just as well ask that every man be his own engineer or every man his own doctor. In every age comes the demand that the law be certain and sure, as the demand of justice, while at the same time the loudest exponents of this demand are asking that the law be made uncertain by the application of some particular concept of justice or right to each particular case, as it may occur to the judge who is deciding the case.
This conflict between legality and moral judgments can best be illustrated by a case put by a Grecian sage over twenty-four hundred years ago. An importer of grain in the Island of Rhodes has in the harbor a vessel just arrived from Egypt which is loaded with grain. Owing to a scarcity of grain on the Island, the price of grain has risen beyond measure and the importer of grain can ask what he pleases. But he knows what the purchasers do not know, that a half-dozen ships loaded with grain will arrive in a day or two and then the price will fall to normal or below.
Is the importer bound by the law of sales to disclose his private knowledge to the purchasers? One school of Grecian philosophers and Cicero answered the question in the affirmative, but the Stoics answered that the importer was under no obligation to make disclosure. But if many people should be affected by this situation, the case would appeal to the ordinary non-legal mind as a case in which a harsh and grasping wretch was permitted by the law to grind the faces of the poor.
The Roman law in certain relations, at least, imposed this duty of disclosure upon both seller and purchaser. Hence in our law of marine insurance the assured applying for marine insurance is bound to disclose the facts known to him that are relevant to the risk. But before this law of insurance was introduced into the English common law, that law had established the rule that the purchaser buys at his own risk. If he desires protection he must obtain either an express warranty as to the things sold or obtain an implied warranty, but a warranty that the seller or the purchaser knew of no facts that would affect the price would be unheard of, and so indefinite as to afford no legal standard.
A well known case shows that this rule of the common law is still untouched in English law. A man sold in a public market hogs that had been exposed, to his knowledge, to the contagion of a certain disease. The purchaser drove the hogs to his home, they infected his other hogs and he suffered a great loss. The law forbade such a sale in open market, and it was an unlawful sale. The question was whether there was any actionable deception or deceit in this sale. It was contended that on any principles of fair dealing in open market the seller must at least impliedly represent that he was not selling a thing unlawful for him to sell, that every man at least represents that he is acting lawfully, because until proof appears to the contrary, the legal presumption is that every man is acting lawfully. But the courts of England answered this strong contention with the old rule that a purchaser buys at his peril. The common law, of course, would protect a purchaser against the seller’s want of title. Most men would probably have the feeling that the law ought not to permit a sale, at least in open public market, of disease-bearing animals.
A system of law which in its administration does not provide in some way for veiling or avoiding a legal judgment that is likely to offend the moral judgment of many people is always in danger. There have been two ways of reaching this result. Popular courts like the Athenian dicasts or the Roman Hundred Courts or the Anglo-Saxon county courts were allowed to make the judgment. If they misstated the rule of law, the violation was veiled in the judgment of many people. But this solution has been long abandoned. The same result was allowed in the old English witness jury. The special value of a jury to-day is that when it violates the rule of law, the law does not bear the burden of an unjust verdict nor does the judge, while if the verdict seems contrary to ordinary ideas of right, the jury bears the odium of the decision. But it is plain that if the moral judgments of men were always to govern in judicial controversies, there would be no general rule of law in any case presenting a strong ethical aspect contrary to the rule of law. The result of such insistence on purely moral judgments is that all men are entitled to equal justice under general rules of law except those who in the opinion of many people are not so entitled. The result of the conflict of ideas in democratic governments is bound to be a compromise, but surely it is best arrived at by smothering under a fog of popular participation in the court the refusal to accord in some peculiar instances the general rule of law. Like all institutions administered by fallible human beings it is probably of more importance that the law should seem to do justice, than that it should arrive at rigidly theoretical just results.
The English common law, as we look back over its history, demonstrated through many centuries that strict and rigid law produced often strict injustice. The law must govern human beings. They cannot be made into logical machines, nor can the law be made into an infallibly logical system without sad results. After all, the vast mass of litigation is over very doubtful cases. The general considerations of justice, the need for human security, the widespread idea of the general public welfare, the respect for law and order, the demand for honesty, good faith, and fair dealing, the general recognition of property rights and the need for keeping contracts, have in the end given sound results in England in later years. Charles Reade’s Hard Cash is the best of all the legal novels; it is, however, marred by the bad law of using a dying declaration as evidence in a civil case. The Yankee Fullalove in that tale takes his negro man Vespasian into an English court. He tells him that they sell a thing there called justice and they sell it “dear but prime.” The price is not so dear as it once was, but the article has lost none of its prime quality in the reduction of the price.
If a competent lawyer compares the English cases on the subject of unfair trade in the common practice of “pirates” trying to appropriate valuable trade names, with the American cases both in Federal and in State courts on that subject, he will see how much more insistent are English judges than American, in trying to secure honest and fair dealing. He will find, too, that the prime sinner in this regard is not among the State courts, though sometimes those judges display an obtuseness to moral considerations of honesty, but is that exalted tribunal, the Supreme Court of the United States.
[1. ]The reader may also wish to consult Lillian de la Torre’s The Heir of Douglas (New York: Alfred A. Knopf, 1952), a dramatic rendering of this affair. —C. J. R., Jr.
[2. ]See also E. A. Smith, A Queen on Trial: The Affair of Queen Caroline 1820–1821, (Dover, N.H.: A. Sutton, 1993); and Ruger Fulford, The Trial of Queen Caroline (New York: Stein and Day, 1968). —C. J. R., Jr.
[3. ]Thomas Erskine (1750–1823). See Lloyd Paul Stryker, For the Defense: Thomas Erskine, the Most Enlightened Liberal of His Time (Garden City, N.Y.: Doubleday, 1947). —C. J. R., Jr.
[4. ]The incapacity of one spouse to testify against the other has been diminished significantly since Zane wrote. See especially Trammell v. United States, 445 U.S. 40 (1980). A broad evidentiary privilege has in recent decades been extended both to the medical profession and to the so-called priest-penitent relationship. —C. J. R., Jr.
[5. ]The reference is to the Leopold and Loeb case, a 1924 murder case that received worldwide attention. Clarence Darrow was the attorney for the defense. —C. J. R., Jr.